State v. Lopata ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JOHN JAMES LOPATA, Appellant.
No. 1 CA-CR 14-0432
FILED 8-6-2015
Appeal from the Superior Court in Maricopa County
No. CR 2013-104810-001
The Honorable Christine E. Mulleneaux, Judge Pro Tem
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
STATE v. LOPATA
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop joined.
D O W N I E, Judge:
¶1 John James Lopata appeals his conviction and sentence for
attempt to commit theft of means of transportation. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 O.A. discovered Lopata in O.A.’s truck, attempting to start the
vehicle with a key. O.A.’s keys had gone missing several days earlier after
he left them in his apartment door. O.A. was worried that someone would
steal his truck, so he had pulled the distributor cap wire to disable the
vehicle.
¶3 When Lopata saw O.A., he exited the vehicle and took a
bicycle from the truck’s bed. Lopata tried to ride away, but O.A. grabbed
the handlebars and detained Lopata until police officers arrived. Lopata
told officers that he had found the keys in the parking lot and was trying to
help the owner start the truck.
¶4 Lopata was charged with one count of attempt to commit
theft of means of transportation, a class four felony. After a jury trial, he
was found guilty. The superior court determined Lopata had five prior
felony convictions and sentenced him to a presumptive term of 10 years’
imprisonment. Lopata timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶5 Lopata contends his conviction should be vacated because the
State “presented no evidence that [he] knew or should have known that the
1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Nihiser, 191
Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).
2
STATE v. LOPATA
Decision of the Court
victim’s truck was stolen.” Sufficiency of the evidence is a question of law
that we review de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188,
1191 (2011).
¶6 A.R.S. § 13-1814(A)(5) provides that a “person commits theft
of means of transportation if, without lawful authority, the person
knowingly . . . [c]ontrols another person’s means of transportation knowing
or having reason to know that the property is stolen.”2 To prove the
charged offense of attempted theft of means of transportation, the State was
required to prove that Lopata intentionally performed an act that was “any
step in a course of conduct planned to culminate in commission” of theft of
means of transportation. See A.R.S. § 13-1001(A)(2).
¶7 Lopata argues that because O.A. acknowledged “his truck
had not been stolen and that it had not been moved from the space where
he had parked it last,” the jury’s verdict was improper. We disagree. “An
attempt is substantively different from a completed crime because an
attempt to commit an offense does not require that all the elements be
present for the commission of the offense. Attempt requires only that the
defendant intend to engage in illegal conduct and that he take a step to
further that conduct.” Mejak v. Granville, 212 Ariz. 555, 559, ¶ 20, 136 P.3d
874, 878 (2006). “The ultimate crime need not be completed, or even
possible, for a defendant to be criminally responsible for an attempt to
commit a crime.” Id.¶8 The State presented substantial evidence that Lopata
committed acts that were steps in a course of conduct intended to culminate
in the truck’s theft. O.A. testified he did not know Lopata and did not give
him the truck’s keys or permission to use the vehicle. He further testified
that after he discovered Lopata trying to start the truck, Lopata attempted
to flee on a bicycle he pulled from the truck’s bed. Lopata told officers he
was attempting to assist the truck’s owner — a claim O.A. refuted at trial.
Under these circumstances, sufficient evidence supports the conviction for
attempt to commit theft of means of transportation.
2 The jury was instructed solely on the elements of theft of means of
transportation under A.R.S. § 13-1814(A)(5) — the only subsection that
contains the knowledge element on which Lopata’s argument is based.
3
STATE v. LOPATA
Decision of the Court
CONCLUSION
¶9 For the foregoing reasons, we affirm Lopata’s conviction and
sentence.
:RT
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